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Circulate To All Judicial ...

vs Dipesh Sinh Kishanchandra Rao & on 8 May, 2015

Gujarat High Court


Circulate To All Judicial ... vs Dipesh Sinh Kishanchandra Rao & on 8 May, 2015
R/SCR.A/5562/2014 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5562 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to
the Reporter or not ?

Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case
involves a substantial question of law as to the interpretation of the Constitution of India or No any
order made thereunder ?

C i r c u l a t e t o a l l J u d i c i a l M a g i s t r a t e s
========================================================== GULF
ASPHALT PRIVATE LIMITED KNOWN AS ASPAM PETRONERGY PVT. LTD....Applicant(s)
Versus DIPESH SINH KISHANCHANDRA RAO & 1....Respondent(s)
========================================================== Appearance:

MR AR GUPTA, ADVOCATE for the Applicant(s) No. 1 MS HETVI H SANCHETI, ADVOCATE for
t h e R e s p o n d e n t ( s ) N o . 1
========================================================== CORAM:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 08/05/2015 CAV JUDGMENT

1. By this application under Article 227 of the Constitution of India, the applicant - original
c o m p l a i n a n t c a l l s i n q u e s t i o n t h e
legality and validity of the order dated 16.10.2014 passed by the learned Additional Sessions
Judge, Court No.3, City Civil and Sessions Court, Ahmedabad in the Criminal Revision
Application No.191 of 2014, by which the learned Sessions Judge allowed the
revision application filed by the respondent No.1 herein - original accused quashing and setting
aside the order dated 03.04.2014 passed by the learned Additional Chief Metropolitan
Magistrate, Court No.28, Ahmedabad in the Criminal Case No.2592 of 2010
permitting the complainant to be substituted.

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2. The facts giving rise to this application are as under: 2.1 A sole proprietorship firm viz.
"Aspam Petronergy Private Limited" through its proprietor filed a private complaint against the
respondent No.1 - the accused under Section 138 of the Negotiable Instruments Act, 1881 (for
short, "the Act"), which came to be registered as the Criminal Case No.2592 of 2010.

3. On filing of the complaint, the learned Magistrate took


cognizance upon the same and ordered issue of process against the
accused for the offence punishable under Section 138 of the Act.

4. During the pendency of the trial, the proprietary concern got converted into a private limited
company namely, "Aspam Petronergy Private Limited".

5. Since the complaint was filed in the name of the proprietary


concern through its proprietor and at a later stage, the proprietary
concern got converted into a private limited company, the private limited company through its
authorized signatory preferred an application Exh.3 before the trial Court to substitute
itself as a complainant in place of the original proprietary concern.

6. The application Exh.3 came to be allowed by the trial Court permitting the private limited
c o m p a n y t o b e s u b s t i t u t e d a s t h e
original complainant for the purpose of proceeding further with the complaint.

7. The respondent No.1 - the original accused being dissatisfied


with the order passed by the trial Court below Exh.3 preferred a
Criminal Revision Application No.191 of 2014 and challenged the
order passed by the trial Court below Exh.3.

8. The Revisional Court, vide order dated 16.10.2014, allowed


the revision application and quashed the order passed by the trial Court below Exh.3.

9. The applicant - original complainant being dissatisfied has


come up with the present application.

10. Mr. A.R. Gupta, the learned advocate appearing for the applicant vehemently
s u b m i t t e d t h a t t h e R e v i s i o n a l C o u r t
committed an error in quashing the order passed by the learned Magistrate below Exh.3
p e r m i t t i n g t h e a p p l i c a n t h e r e i n t o b e
substituted as a complainant in place of the proprietary concern.

11. Mr. Gupta submitted that the Revisional Court proceeded absolutely
on a wrong footing that the order passed by the trial Court below Exh.3 was in the form of
an amendment in the complaint. Mr. Gupta submitted that the substitution of a
complainant in the complaint would not amount to amending the
complaint. Mr. Gupta submitted that the two decisions relied upon by the Revisional Court,

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namely (1) Lekhraj Singh Kushwah v. Brahmanand Tiwari reported in 2014 Cr. L. J. 290,
and (2) Suboodh s. Salaskar v. Jayprakash M. Shah and another
reported in AIR 2008 Supreme court 3086(1), have no application
worth the name in the present case.

12. In such circumstances referred to above, Mr. Gupta prays that


there being merit in this application, the same be allowed and the impugned order be quashed.

13. On the other hand, this application has been vehemently


opposed by Ms. Hetvi H. Sancheti, the learned advocate appearing
for the respondent No.1 - accused. She submitted that no error, not
to speak of any error of law could be said to have been committed by the Revisional Court in
p a s s i n g t h e i m p u g n e d o r d e r . S h e
submitted that although the complaint was lodged in the name of a proprietary concern,
yet if the proprietary concern has ceased to exist as the same has been now taken over by a
private limited company, it cannot be substituted in the complaint as a
complainant in place of the proprietary concern since the applicant
herein is neither a "payee" nor a "holder in due course".

14. Ms. Sancheti submitted that it is only the "payee" or the


"holder in due course", who can lodge the complaint and proceed further with the same.

15. Ms. Sancheti placed strong reliance on the decision of the


Supreme Court in the case of Shankar Finance and Investments v.
State of Andhra Pradesh and others reported in (2008) 3 SCC
(Cri) 558 in support of her submission.

16. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question that falls for my
consideration is whether the court below committed any error in passing the impugned order.

17. It is not in dispute that the complaint under Section 138 of


the Act was lodged by a proprietary concern through its proprietor.
It is not in dispute that upon such complaint being filed, the Court below took cognizance upon
the same and ordered the issue of process against the accused for the offence
punishable under Section 138 of the Act.

18. During the pendency of the trial before the trial Court, the running business of the sole
p r o p r i e t o r s h i p " A s p a m P e t r o n e r g y
Private Limited" was taken over by the "Aspam Petronergy Private Limited".

19. I may quote the Memorandum of Association of the private limited company as under:

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"(THE COMPANIES ACT, 1956) (COMPANY LIMITED BY SHARES)


M E M O R A N D U M O F A S S O C I A T I O N O F
ASPAM PETRONERGY PRIVATE LIMITED I. The name of the company is
ASPAM PETRONERGY PRIVATE LIMITED.

II. The registered office of the company will be situated in the


Union Territory of Delhi.

III. The objects for which the company is established are:− (A)
THE MAIN OBJECTS TO BE PURSUED BY THE COMPANY
ON ITS INCORPORATION ARE:

1. To takeover the existing business of Sole Proprietorship


Firm "Aspam Petronergy" (the Firm) situated at Shop No.4, B−Block, Antirksh
Appartment, Sector−14, Rohini, New Delhi−110085 as a going concern
a l o n g w i t h a l l i t s a s s e t s ,
liabilities, contracts, arrangements, agreements, etc and on
such terms and conditions as may be mutually agreed upon.
The said Firm will cease to exist after such takeover, by the
company after its incorporation.

2. To carry out on the business of manufacture, processors,


traders, sellers, wholesalers, suppliers, intenters, stockists or
otherwise deal, only on wholesale basis, in industrial oil and chemicals and other
c h e m i c a l s a n d a n y p r o d u c e s a n d b y
products derivatives thereof and to carry out on the business
as manufacturers, processors, exporters, importers, traders,
buyers, sellers, wholesaler, stockists or otherwise deal, only on wholesale basis, in
petroleum and other oils and hydrocarbons of every description.

3. To store and prepare for market, transport by land, sea or air and convey in
any manner whatsoever petrol, motor, spirit, mineral oil, petroleum,
o l e g i n o u s s u b s t a n c e , o i l ,
shalos, coal, coke, lignites, bitumen, naphas, mineral waxes,
gas and mineral substances or all kinds and to carry out the
business as manufactures, processors, exporters, importers, traders, buyers,
sellers, wholesales, stockists or otherwise deal in any manner whatsoever
only on wholesale basis, petrol, motor spirit, mineral, oil petroleum,
oleaginous substances, oil shalos, coal, coke, lignite, bitumen, naphtha,
mineral waxes, gas, mineral substances of all kinds."

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20. A very short, but an important point which falls for my


consideration is whether permitting a private limited company to be substituted as
the complainant in place of the proprietary
concern amounts to an amendment in the complaint.

21. It is true that there is no provision in the Criminal Procedure Code, which empowers a Court
to permit an amendment of the complaint at a later stage. However, the substitution
of the complainant at a later stage in certain contingencies would not
amount to seeking an amendment in the complaint.

22. The Black's Law Dictionary, 5th Edition, explains "amendment" as under:

"Amendment To change or modify for the better. To alter by


modification, deletion, or addition.

Practice and pleading. The correction of an error committed


in any process, pleading, or proceeding at law, or in equity,
and which is done either as of course, or by the consent of parties, or upon
m o t i o n t o t h e c o u r t i n w h i c h t h e
proceeding is pending. Under Fed.R.Civil P., any change in pleadings, though not
n e c e s s a r i l y a c o r r e c t i o n , w h i c h a
party may accomplish once as a matter of course at any time before a responsive
p l e a d i n g h a s b e e n s e r v e d . S u c h
amendment may be necessary to cause pleadings to conform
to evidence. Rule 15(a), (b). The amendment relates back to the original pleading
if the subject of it arose out of the transaction set forth or attempted to
be set forth in the original pleading. Fed.R.Civil P. 15(c) Compare
Supplemental pleadings."

23. The word "Amend" has also been explained in the Black's
Law Dictionary, 5th Edition as under:

"Amend To improve. To change for the better by removing defects


of faults. To change, correct, revise."

24. The Oxford Advanced Learner's Dictionary, 6th Edition, explains "Amendment" as under:

"Amendment 1 a small change or improvement that is made to a


law or a document; the process or changing a law or a document:
to introduce/propose/table an amendment (= to suggest it). She
made several minor amendments to her essay. Parliament passed
the bill without further amendment. 2 (Amendment) a statement
of a change to the CONSTITUTION of the US: The 19th Amendment
gave women the right to vote."

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25. The word "Amend" has been explained by the Oxford


Advanced Learner's Dictionary, 6th Edition as under:

"Amend to change a law, document, statement, etc, slightly in


order to correct a mistake or to improve it. He asked to see the amended version."

26. The West's Legal Dictionary explains the term "Amend" and "Amendment" as under:

"Amend v. 1. To improve (amend the condition). Correct, remedy,


repair, reform, purify, rectify, better, cleanse, mend, make better, perfect,
ameliorate, refine, upgrade, meliorate, emend, polish,
redeem, redress. 2. To change (amend the proposal). Revise, alter, change, enlarge,
add, develop, transform, refashion, revamp,
rewrite, rework, modify, adjust, edit, qualify, commute, convert."

"Amendment n. 1. Improvement, Correction, remedy, repairing, reformation,


rectification, betterment, perfection, clarification,
amelioration, refinement, redemption, redressing, purification. 2. A change.
Revision, alteration, enlargement, addition,
development, transformation, revamping, reworking, conversion, metamorphosis,
exchange. 3. Legislation, Statute, act, measure, bill, rider, resolution, clause.
4. Attachment. Supplement, appendix, appendage, addendum,"

27. Section 138 of the Act reads as under:

"Dishonour of cheque for insufficiency, etc, of funds in the account.−


Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount of money to another
person from out of that account for the discharge, in whole or in
part, of any debt or other liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit of that account is
insufficient to honour the cheque or that it exceeds the amount arranged to be
paid from that account by an agreement made with that bank,
such person shall be deemed to have committed an offence and shall, without
prejudice to any other provisions of this Act, be
punished with imprisonment for [a term which may be extended
to two years], or with fine which may extend to twice the amount
of the cheque, or with both:

Provided that nothing contained in this section shall apply unless−

(a) the cheque has been presented to the bank within a period of
six months from the date on which it is drawn or within the period
of its validity, whichever is earlier;

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(b) the payee or the holder in due course of the cheque, as the
case may be, makes a demand for the payment of the said amount of money by
giving a notice in writing, to the drawer of the
cheque, [within thirty days] of the receipt of information by him
from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the
said amount of money to the payee or, as the case may be, to the holder in due
course of the cheque, within fifteen days of the receipt of the said notice.

Explanation− For the purposes of this section, "debt or other


liability" means a legally enforceable debt or other liability.]"

28. Section 142 of the Act reads as under:

"Cognizance of offences− Notwithstanding anything contained in


the Code of Criminal Procedure, 1973 (2 of 1974) −

(a) no court shall take cognizance of any offence punishable under section 138
except upon a complaint, in writing, made by the payee or, as the case
may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on


which the cause of death arises under clause (c) of the proviso to section 138:

[Provided that the cognizance of a complaint may be taken by the


Court after the prescribed period, if the complainant satisfies the Court that he
had sufficient cause for not making a complaint within such period.]

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial


Magistrate of the first class shall try any offence
punishable under section 138.]

29. Section 142(a) of the Act provides that no Court shall take cognizance of any offence
punishable under Section 138 except upon a complaint made in writing by the payee.
Thus, two requirements are that (a) the complaint should be made in writing (in
contradistinction from an oral complaint); and (b) the
complainant should be the "payee" or the "holder in due course" where the
payee has endorsed the cheque in favour of someone else.

30. The payee, in the present case, was the proprietary concern. As a "payee", the proprietary
c o n c e r n w a s c o m p e t e n t t o f i l e t h e
complaint and it did file the complaint. Once the complaint is in the
name of the "payee" and is in writing, the requirements of Section

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142 are fulfilled. Who should represent the payee where the payee
is a company, or how the payee should be represented where the "payee" is a sole proprietary
concern, is not a matter that is governed by Section 142, but by the general law. (See Shankar
Finance (supra).)

31. In my view, when the complaint was lodged in the year 2010 by the proprietary concern, the
s a m e w a s m a i n t a i n a b l e a s t h e
proprietary concern was the "payee" of the cheque. At a later stage
for the purpose of business convenience, if the entire business of
the proprietary concern with all its rights and liabilities were taken over by a private limited
c o m p a n y , t h e n s u c h p r i v a t e l i m i t e d
company can seek substitution as a complainant in the complaint so that the private limited
company can pursue the complaint further in accordance with law.

32. The entire reasoning assigned by the Revisional Court are


absolutely fallacious. The Revisional Court has thoroughly confused
itself with the amendment in the complaint and substitution of the complainant.

33. The case on hand is not one in which the amendment was
prayed for in the pleadings of the complaint. Had it been so, then
probably the Revisional Court would have been justified in saying that there cannot be any
a m e n d m e n t i n t h e p l e a d i n g s o f t h e
complaint after the complaint is filed and cognizance is taken by the Court.

34. I may quote with profit a decision of the Kerala High Court in the case of Kasargod Self
E m p l o y e e s F i n a n c i n g C o v . S t a t e o f
Kerala and another reported in 2009 Criminal Law Journal 305 wherein an identical issue was
c o n s i d e r e d b y a l e a r n e d S i n g l e
Judge of the High Court. I may quote the observations made by the
Court as contained in paras Nos.6, 7, 8, 9 and 10 as under:

"6. It seems to be clear from the evidence of PW 1 that the


complainant firm ceased to be in existence in the year 2000. Going by
the finding given by the Court below in C.C. No. 449/1998 leading to
Crl.A.2123/2008, the complainant firm ceased to be in existence on 1−
4−2000. A firm essentially ceases to be in existence when it stands
dissolved. Such dissolution takes place either by a voluntary act of the
partners constituting the same or by operation of law when one of the
partners in the firm dies or retires or is declared insolvent and there is
no provision in the partnership deed providing for the continuance of
the firm in spite of the retirement or death of a partner. Dissolution of
a firm also takes place when there is an order by the Court. Though the document
evidencing the merger of the firm in the company, bearing the same
name has not been placed on record before the

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Court, going by the version given by PW1, it can only be treated as a


case where the partners of the firm, resolved to float a company of the
same name, the said company came into existence, and the assets and
liabilities of the firm were taken over by the newly floated company. In
other words, there was a transfer of the assets and liabilities of the
firm in favour of the company, as an ongoing concern. This is what is
discernible from the testimony of PW1. As rightly pointed out by Mr.

Jaju Babu the concept of merger would essentially apply only between
two corporate entities and in such a case, a merger would be regulated by the provisions of
Sections 391 to 394 of the Companies Act. I
proceed on the premise, going by the finding of the Court below and the testimony of PW1, that
t h e p a r t n e r s w h o c o n s t i t u t e d t h e
complainant firm resolved that the entire assets and liabilities of the
firm shall be transferred to and be treated as the assets of the public
limited company of the same name. In fact, there came into being a dissolution of the firm by
a c t o f p a r t i e s a n d c o n s e q u e n t l y t h e
complainant firm ceased to be an ongoing concern with effect from 1−
4−2000, going by the finding of the Court below in C.C. No. 449/2008
leading to Crl.A.2123/2008, I will have to proceed on this basis, since
the factual premise has not been challenged by any of the parties.

7. The complaint was instituted by the firm and, except in the case
of Crl.A.661/ 2005 arising from C.C. No. 288/2001, the complainant firm was in, existence
w h e n t h e c h e q u e w a s i s s u e d , p r e s e n t e d f o r
collection, when the statutory demand notice was issued and more
importantly when the complaint was instituted. The complainant was
represented by a General Power of Attorney holder and the firm had executed the Power of
Attorney in favour of the Power holder authorizing him to conduct the proceedings on
behalf of the complainant firm. In all the aforementioned cases, there was no defect
in the institution of the complaint as such. But during the pendency of
the proceedings the complainant firm ceased to be in existence and as I
mentioned above, the firm can cease to either by operation of law or by the voluntary act of
t h e p a r t n e r s . I t w i l l t a n t a m o u n t t o a c a s e
where the complainant is not in a position to thereafter appear before
the Court and therefore, will have to be treated as a case where the
complainant is absent from the Court. But obviously in most of such
cases, a dissolution of the firm, whether it is by act of partners or otherwise, would be evidenced
b y a d o c u m e n t a n d t h e e r s t w h i l e
partners or the continuing partners as the case may be, will have to
provide for the continuance of such cases as are existing as on the date
of dissolution and the right to continue the proceedings will have to be
vested in one of the erstwhile partners of the firm. Each partner is an
agent of the firm and is an agent of each other and therefore, the

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partner, who is authorized to continue the proceedings on behalf of the firm, will be in a
position to continue the prosecution of the
complaint. But in a case where a dissolution of the firm takes place during the pendency of the
p r o c e e d i n g s b e f o r e t h e t r i a l C o u r t ,
erstwhile partner, who is given the right to continue the proceedings,
will have to approach the Court with an application under Section
302 of Cr. P.C for a permission to continue the prosecution. Where the
Deed of dissolution between the parties does not specifically provide that anyone of the
p a r t n e r s m a y c o n t i n u e w i t h t h e p e n d i n g
proceedings which the firm had actually instituted (or which the firm
was defending as the case may be), then each one of the erstwhile
partners would have a right to approach the Court or the right to continue the proceedings
n o t w i t h s t a n d i n g t h e d i s s o l u t i o n , o n t h e
premise that the continuance of the proceedings are necessary to wind
up the affairs of the firm and to complete the transactions taken but
unfinished at the time of dissolution (Section 47 of the Partnership
Act). But once there is a dissolution of the firm, which figures as a
complainant, during the pendency of the complaint, there has to be a
motion at the instance of a competent person, competent to represent
the interest of the erstwhile firm, seeking the permission of the Court
to continue the prosecution in terms of Section 302 of Cr. P.C. Failure
to do so would result in a situation where the Court would be perforce
compelled to proceed under Section 256 of the Cr. P.C.

8. Insofar as the present case is concerned, PW1 was the Power of


Attorney holder of the erstwhile firm and therefore he was competent
to represent the interest of the firm while it was in existence and at
any rate, competent to speak on behalf of the partners of the firm till
the firm ceased to be in existence in the year 2000. Of course assets
and liabilities of the firm, as an ongoing concern, came to be vested in the limited company. In
s u c h c i r c u m s t a n c e s , t h e p u b l i c l i m i t e d
company, which was floated by the erstwhile partners of the firm as
promoters would have been competent to make an application before the Court below under
Section 302 of Cr. P.C to continue the prosecution as such. Even a Director of the
Company, without a separate Power of Attorney in his favour, would have been competent to
represent the company. But an application to continue the
prosecution should have come from the transferee in interest, broadly
answering the description of a legal representative. This is the view that has been taken by the
S u p r e m e C o u r t i n t h e a f o r e m e n t i o n e d
decision (JT 2004 (9) SC 558) 2005 Cri LJ 112 Admittedly, no such
application was filed on behalf of the public limited company having
the same name of the complainant firm at any point of time before the
acquittal of the accused and consequently the Court below was right in
holding that the complainant firm would be treated as bereft of a

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representation, after the dissolution of the firm as such. To that extent


the finding of the Court below is justified and I uphold the same.

9. But if this be the position that results from the dissolution of


the firm, which figured as a complainant, then, in my view, further
finding of the Court below, on an appreciation of the defence taken by
the accused, that the cheque was not issued in discharge of a liability
and the course of action adopted by the Court below in acquitting the
accused under Section 255(1) is not correct. In my view, if it is a case
where the complainant ceases to be in existence or the case where the
complainant is not properly represented at any point of time, then it
tantamounts to a case of absence of the complainant under Section
256(1). Since the firm is the complainant and therefore, the death of
the complainant is not possible, on dissolution of the firm a cessation
of the firm comes into being and unless there is an application by a
competent person entitled to continue to represent the interest of the
complainant made before the Court and the Court accepts the same, it
is a case where the Court will have to proceed on the premise that the
complainant is absent, under Section 256(1). If that be the case, the learned Chief Judicial
M a g i s t r a t e s h o u l d h a v e o b v i o u s l y p r o c e e d e d
under Section 256(1) and not under Section 255(1) of the Cr. P.C.

10. Further, consistent with the finding which I have just made
above that the complainant firm stood admittedly dissolved with effect
from 2000, it also has to be held that if therefore, the accused was to be acquitted under Section
2 5 6 ( 1 ) o n t h e p r e m i s e t h a t t h e
complainant is absent and the finding itself was in consequence of the
fact that the complainant ceased to be in existence in 2000 and there
was no application by a competent person to continue the prosecution
in terms of Section 302 of Cr. P.C the appeal itself may have to be
held as incompetent. The appeal is presented by the firm and since the appeal under Section
378 Cr. P.C could be presented only by the
complainant (in the case of a private complaint), the dissolution of
the complainant firm and absence of a competent person to continue
the prosecution, in such circumstances, will stand in the way of the complainant firm continuing
t h e p r o s e c u t i o n a f t e r o b t a i n i n g l e a v e
from this Court under Section 378 Cr. P.C. This in my view would be
an additional factor which stands in the way of the appellant seeking
reversal of the order of acquittal."

35. The decision relied upon by Ms. Sancheti, the learned


advocate appearing for the accused of the Supreme Court in the
case of Shankar Finance (supra) does not help the accused in any manner, but on the contrary
the principle explained in the said judgment is helpful to the applicant herein.

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36. I may also quote with profit a decision rendered by a learned Single Judge of this Court in
the case of Anil G. Shah v. Chittaranja Co and another reported in 1998 (1) GLR 303.

"7. No doubt, section 142(a) of the Act makes it quite clear that the Court shall not
t a k e c o g n i z a n c e o f a n y o f f e n c e p u n i s h a b l e
under section 138 except upon a complaint in writing made by
the payee or the holder in due course of the cheque as the case
may be. If this provision of section 142(a) is considered, then it would be quite
clear that this provision is laying down a
provision as to how the cognizance of an offence is to be taken. The said provision
makes it quite clear that the offence punishable under section 138 is
not a cognizable offence as contemplated by the Code of
Criminal Procedure. In the case of a cognizable offence contemplated
by Code of Criminal Procedure, it is a settled law that anybody can set law
in motion by lodging a complaint. But in view of the provisions of section 142
of the Act, cognizance of the offence could be
taken only in case if the complaint is lodged either by payee or
the holder in due course of the negotiable instrument. As it is an
admitted fact that the complaint in question was lodged by the
power of attorney holder of the original payee, it would be
necessary to revert to the provisions of section 2 of the Powers of
Attorney Act, 1882. The said section 2 runs as under:

"2. Execution under power of attorney :− The donee


of a power−of−attorney may, if he thinks fit, execute or do
any instrument or thing in and with his own name and
signature and his own seal, where sealing is required, by the
authority of the donor of the power; and every instrument
and thing so executed and done, shall be as effectual in
law as if it had been executed or done by the donee of
the power in the name, and with the signature and seal, of the donor thereof."

If the above provision of sub−section (2) is considered, then it


would be quite clear that in view of the provisions of the said section, an act committed
by the holder of the power of attorney would be presumed to be an act committed by
the person who gives power of attorney. Therefore, in view of this
specific provision of section 2 of the Powers of Attorney Act, 1882, it would have to be
presumed as per law that the complaint lodged by the power of attorney holder
is a complaint lodged by the payee. Learned advocate for the respondent Mr.
Hasurkar vehemently urged before me that section 142 (a) of the Act does not incorporate

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that the court should take the cognizance of complaint lodged by the payee's
power of attorney holder and therefore, the Court cannot hold
that the power of attorney holder's act is an act of the payee.
He further contended before me that if this Court holds that the power of attorney can lodge
a complaint then this court would be legislating what is not legislated by the
Legislature, while framing section 142 of the Act. But what is being considered by
me in this case is as to whether taking of the
cognizance of a complaint lodged by a power of attorney holder
of a payee could be said to be legal in a complaint filed by the payee. I can refuse to take
cognizance of the offence punishable under section 138 only in case if it is found by me
that the complaint lodged is not lodged by the payee. If the
payee is empowered by the provisions of the Powers of Attorney Act, 1882 to empower other
persons to act on his behalf and thereby to bind himself,then it could not be said that
his acting under the said provisions is illegal and invalid.

8. The view which I have taken is supported by the decision


of the Kerala High Court, Madras High Court, Calcutta High Court
and Punjab and Haryana High Court. In the case of Hasma vs.
Ibrahim, reported in 1994(1) Bank Commercial Law Reporter,159, His Lordship K T
Thomas, (as he then was) has observed in paras 7 and 8
as under for holding that the power of attorney holder of
a payee can lodge a complaint under section 142 of the Act.

"7. In considering the question involved here legal position regarding the right of a
person to appoint another as his agent to be understood at least in a general
manner. According to the law of England "every person who is suit jurist has a
right to appoint an agent for any purpose whatever and tht he can do
s o w h e n h e i s e x e r c i s i n g a
statutory right no less than when he is exercising any other right" (vide Jackson
a n d C o . v s . N a p p e r ( 1 9 8 6 ) 3 5 C h . D ,
162 at page 172(. This was recognised as a common law
right. Blackburn, J has stated in Queen vs. Justices of Kent
(1873) 8 Q.B. 305 that " at common law, when a person authorises another to
s i g n f o r h i m , t h e s i g n a t u r e o f t h e
person so signing is the signature of the person authorizing
it". The Supreme Court has declared in a decision that the
law in India is also the same (vide Revulu Subbarao vs. I.T. Commr. 1956 SC,604)
V e n k a t a r a m a A y y a r , J i n t h e s a i d
decision has observed that the said rule is subject to certain well known exceptions
s u c h a s , w h e n t h e a c t t o b e

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performed is personal in character, or when the act to be performed is annexed to


a public office, or to an office involving any fiduciary obligation. "But
apart from such exception, the law is well settled that whatever a person can do
himself, he can do through an agent" observed the
learned Judge in the said decision. The above can thus be
regarded as the legal position regarding the right to appoint an agent.

8. "Power of attorney" is the instrument by which a person is


authorised to act as the agent of the person grating in (vide Black's Law
Dictionary). In Stroud's Judicial Dictionary,
power of attorney is described as "an authority whereby one
is set in the turns, stead, or place of another to act for him."
Stone, C.J. Has adopted the said definition as effective and
acceptable in Ramdeo vs. Lalu Natha AIR 1937 Nagpur,65).
Section 2 of the Power of Attorney Act, 1882 empowers the
donee of the power of attorney to do anything "in and with
his own name and signature" by the authority of the donor
of the power. The section declares that everything so done
"shall be as effectual in law as if it had been......done by the
donee of the power in the name and with the signature.....of the donor thereof"
( s h o r t o f t h e w o r d s w h i c h a r e n o t
necessary in this context). In the light of such declaration,
the legal position is that the power of attorney holder can do everything
empowered by the donor and all such acts done by the donee shall have legal
recognition and acceptance as though such acts were done by the donor
himself."

9. Punjab and Haryana High Court in the case of Punna Devi and another vs. JOhn Impex
( P v t . ) L t d . a n d o t h e r s r e p o r t e d i n
1996(2) Banking Commercial Law Reporter, 482 has upheld the
filing of the complaint by power of attorney holder on behalf of a
payee by making the following observations:

"The eligibility criteria under the Negotiable Instruments Act


is that the complaint should be made by the payee or as the
case may be, the holder in due course of the cheque. This eligibility criteria does
n o t g e t d i s t u r b e d , i f a P o w e r o f
Attorney Agent duly constituted initiates private complaints, for as I have
stated earlier, the Power of Attorney Agent,
steps into the shoes of the payee or the holder in due course of the cheque. It is
n o t a s t h o u g h , t o t a l s t r a n g e r s n o t
contemplated under Section 142(a) of the Act, had initiated
complaints which can be done under the general law, for
there is no specific locus standi, for setting the criminal law

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in motion, unless as I have stated earlier, eligibility criteria intervenes. Once a


P o w e r o f A t t o r n e y A g e n t m a k e s t h e
complaint, for all practical purposes, it is the payee or the
holder in due course of the cheque, who is the complainant,
the words "in writing" mentioned in Section 142(a) of the
Negotiable Instruments Act to my mind, cannot be restricted
to mean, that it must be in writing by the payee himself or
the holder in due course himself, for, if it is made by the Power of
Attorney Agent it tantamounts to the complaint
being made by the payee or as the case may be the holder in
due course of the cheque. As rightly pointed out by one of the counsel, the words
"in writing" appear to have been introduced under Section 142(a) of the
Act, contra distinguished from Section 2(d) of the Criminal Procedure
Code, which postulates an oral complaint as well."

10. The same view is also taken by the Calcutta High Court in
the case of Sk. Aabdur Rahim vs. Amal Kumar Banerjee and State of West Bengal, reported in
1994(2) Current Criminal Reports, 1040.

11. It must be remembered that Section 142 does not lay down
that the complaint must be filed by the payee personally. If the interpretation
w h i c h l e a r n e d a d v o c a t e f o r t h e r e s p o n d e n t w a n t s
me to accept, then it would mean that the complaint must be filed by the payee personally.
When section 142 itself does not specifically say that the complaint must be lodged by
the complainant personally and when it is also not the case of the
public officer lodging the complaint, the lodging of the complaint
by the power of attorney holder of the payee could not be said to
be illegal or invalid. The learned Sessions Judge has not properly
considered the decision of this Court reported in 1995(1) GLR,424
in its proper context. It seems that he has been misled by mere head−note and he has not gone
t h r o u g h t h e s a i d d e c i s i o n . T h e
following observations in the said judgment would clearly show
that the said judgment is not applicable to the facts of the case before me.

12. The learned advocate for the respondent has drawn my


attention to the following commentary in Broom's Legal Maxims, 10th Edition, page 306.

"It is then true that, "when the words of a law extend not to an inconvenience rarely happening,
but do to those which often happen, it is good reason not to strain the words further than they
reach, by saying it is casus omissus, and that the law intended qua frequentius accident". "But"
o n t h e o t h e r h a n d " i t i s n o r e a s o n ,
when the words of a law do enough extend to an inconvenience

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seldom happening, that they should not extend to it as well as if it


happened more frequently, because it happens but seldom" (a) A
casus omissus ought not to be created by interpretation, save in
some case of strong necessity (b) Where, however, a casus omissus does really occur, either
through the inadvertence of the legislature (c) or on the principle quod semel aut bis
existit proetereunt legislatores (d), the rule is that the particular case,
thus left unprovided for, must be disposed of according to the law
as it existed before such statute−Casus omissus et oblivioni datus dispositioni communis juris
r e l i n q u i t u r ( e ) " a c a s u s o m i s s u s "
observed Buller, J (f) "can in no case be supplied by a court of law, for that would be to make laws"

13. In my opinion, the above observations are not at all helpful


to the respondent in the case in question and they do not support
his contention. On the contrary, they support the view taken by
me. The view taken by me also gets support from the observations
of the Apex Court in the case of Vishwa Mitter vs. O.P. Poddar and others reported in AIR 1984
SC, page 5. Para−6 which runs as under:

"6. Even otherwise in the absence of a specific qualification, if the person


complaining has a subsisting interest in the protection of the registered
t r a d e m a r k , h i s c o m p l a i n t
cannot be rejected on the ground that he had no cause of
action nor sufficient subsisting interest to file the complaint.
M/s Mangalore Ganesh Beedies Works, a partnership firm is the registered owner
of trade marks, falsification and infringement of which is complained by
the present complainant who is not only a dealer in these beedies
manufactured and sold by the registered owner of the trade
marks, but he is also the constituted attorney of the owners
of the registered trade mark. To say that the owner of the registered trade mark
c a n a l o n e f i l e t h e c o m p l a i n t i s
contrary to the provisions of the statute and commonsense
and reason. Therefor, the order of the learned Magistrate dismissing the
complaint at the threshold on the ground
that the present appellant has no cause of action to file the
complaint is utterly unsustainable and must be quashed and set aside.
Surprisingly, the High Court dismissed the
revision petition of the complainant in limine which order is
equally unsustainable and must be set aside."

14. Therefore, in view of the above discussion, I hold that the


learned Sessions Judge was not at all justified in interfering with the order passed by the
l e a r n e d M e t r o p o l i t a n M a g i s t r a t e b y
allowing the Revision Application filed by the respondent and in view of the above discussion,
i t w o u l d b e q u i t e c l e a r t h a t h i s

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conclusion that cognizance of the complaint ought to have been


taken in view of the provisions of section 142 of the Negotiable Instruments Act is erroneous
and the same deserves to be interfered with by exercising revisional jurisdiction.

15. The next contention which is raised on behalf of the


respondent is also of technical nature. It is urged on behalf of the respondent that after lodging
of the complaint, the original complainant G.R.Shah has died. G.R.Shah has died on
20.8.94. The complaint in this case was lodged on 7.7.94. The learned
Metropolitan Magistrate has issued process against the respondent on the same day, i.e. on
7 t h J u l y , 1 9 9 4 . O n c e t h e l e a r n e d
Metropolitan Magistrate issues process, it is quite obvious that he
has taken cognizance of the offence. Once the Magistrate happens
to take cognizance of the offence, the death of the payee of the
cheque has no bearing on the trial in question. Had there been the
death of the payee of the cheque before the Magistrate had taken
cognizance of the offence, then there would have been a question
as to whether cognizance of the offence could be taken, but that
question does not arise now in view of the fact that the Magistrate
has already taken cognizance of the matter. Once cognizance of
the offence has been taken by the Magistrate, the trial will have its
end after following due process and procedure as laid down in the
Code of Criminal Procedure. There is no provision in the Code of Criminal Procedure or in the
N e g o t i a b l e I n s t r u m e n t A c t l a y i n g
down that on account of death of the payee, the trial must abate.
When there is no such provision either in the Code of Criminal Procedure or in the Negotiable
Instrument Act, then merely because the original complainant−payee has died, there could not
be abatement of the proceedings. The legal heirs of the original complainant are entitled to
c o m e f o r w a r d a n d a s k f o r t h e i r
substitution in place of the complainant so as to proceed further
with the trial. In the case of T.N.Jayarasan vs. Jayarasan, reported in 1992(3) Crimes, 666, this
question of death of payee− complainant and the consequences of the same has been
considered and it has been held that the Magistrate can grant
permission to the son of the deceased complainant to proceed with
the complainant. The same view is also taken by the High Court of
Jammu and Kashmir in the case of Ashok KUmar vs. Abdul Latif
and others reported in 1989 Criminal Law Journal, 1856 and by the Andhra Pradesh High
Court in the case of Maddipatta Govindaiah Naidu and others vs. Yelakaluri
Kamaalamma and others reported in 1984 Criminal Law Journal, 1326. In my opinion,
the view by all these three High Courts is proper and must be followed.
As stated earlier, once cognizance of the case has been taken by the Magistrate, the case
must have its end according to law and when there is no provision in the Code of
Criminal Procedure to the effect that on account of the death of
the complainant, abatement of the case must take place, it is not
open for the Magistrate to dismiss the complaint by holding that it

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has abated on account of the death of the complainant. Therefore, in my opinion, the death of
the original complainant has no bearing on the trial in question. The learned advocate
for the respondent has vehemently urged before me that till today, no application
is filed by the heirs and legal representatives of the original complainant, to bring them on
record. But when the learned Sessions Judge has already passed an order of dismissing the
complaint under section 258 and when the matter was
pending in the higher forum, it was not possible for the heirs of the original complainant to
m o v e t h e M e t r o p o l i t a n M a g i s t r a t e .
They would be at liberty to take appropriate steps in view of the decision taken by this Court today."

37. The two decisions relied upon by the Revisional Court have been thoroughly misinterpreted.
In the case of Lekhraj Singh (supra), the facts were altogether different. In the said case, after
completion of the cross−examination, the respondent filed an
application for amendment in the complaint before the trial Court submitting that the cheque
No.332534 had been wrongly mentioned in place of 332554 due to the negligence of
the respondent's counsel and not because of the respondent. The trial Court allowed the
application and ordered for carrying out the
necessary amendment in the application. The order was challenged
before the Sessions Court and the Sessions Court also affirmed the
order passed by the trial Court. The High Court did not approve the
orders passed by the Court below and took the view that there was a clear inconsistency in the
number of cheque given by the respondent. The Court proceeded to observe that there
was no provision in the Cr. P.C. to make any amendment in the statement already given. The
l e a r n e d S i n g l e J u d g e o f t h e M a d h y a P r a d e s h
High Court made the following observation in paras Nos.5, 6, 7, 8 and 9 :

"5. The crucial question arises for consideration before this Court is where the
amendment in the complaint filed under Section 138 of the Act is permissible under
the law. It is not disputed that there is no express provision in the Code of Criminal Procedure
to allow the amendment. The order passed by the learned ASJ reveals that while
dismissing the revision of the petitioner, it is observed by the learned ASJ that during
cross− examination of the respondent/complainant suggestion given by the petitioner does not
deny the existence of the questioned cheque, case is at defence stage,
petitioner/accused has an opportunity to defend his case. Reliance has also been placed on the
decision rendered in Pt. Gorelal and Anr. v. Rahul Punjabi,
2010 (II) MPKR 228 (2011 ACD 313 (MP)).

6. The learned counsel for the petitioner submits that this


Court in the case of Kunstocom Electronics (I) Ltd. v. State of MP and another, 2002 (5) MPLJ
178 considering the point as to whether amendment can be made in the complaint,
by placing reliance on Ashok Chaturvedi v. Shitul H. Chanchani, AIR 1998 SC
2796, State of Kerala and others v. O.C.K. Kuttan, 1999 SCC (Cri)
304 : (AIR 1999 SC 1044) and M. Krishnan v. Vijay Singh and
another, 2001 (4) Crimes 65 (SC) : (AIR 2001 SC 3014), held that there is no provision in the

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Code of Criminal Procedure giving right to the parties to file an application


for amendment in the pleadings and give powers to lower Courts to allow the same.
Again this Court in Criminal Revision No. 1041/2007 (Sunder Dev
v. Yogesh) decided on 18−3−2008 has held that such amendment
cannot be allowed by observing that "allowing the application at
this stage of the proceeding when the mater of Section 138 of the
Negotiable Instruments Act is considered, the liability as well as
the compliance demand strict mandatory compliance then under
the said circumstances if the benefit has accrued to the petitioner,
the respondent cannot be allowed to get away with the negligence at this stage of the proceedings".

7. Learned counsel for the petitioner has pointed out that in the
matter of Pt. Gorelal (2011 ACD 313 (MP)) (supra), this Court has taken note of Kunstocom
Electronics (I) Ltd's case, but still allowed the amendment referring the decision
rendered in the matter of Pradeep Premchandani v. Smt. Neeta Jain
(M.Cr.C.No.2907/2007) decided on 18.9.2008, wherein this Court
has held that so far as wrong mention of the cheque number either
in the notice or in the complaint are concerned, the Court would
always have the jurisdiction to look into the fact and do complete
justice in the matter. Further a decision of Rajasthan High Court
rendered in the matter of Bhim Singh v. Kansingh, 2004 (2) DCR 158 : (2004 Cri LJ 4306
( R a j ) ) , w h e r e i n t h e a p p l i c a t i o n f o r
amendment of cheque number and date of information by bank on
ground of typographical mistake was allowed by the trial Court, it was held that trial Court has
inherent power to rectify such typographical mistakes to do justice, and a decision
of Calcutta High Court in the matter of Babli Majumudar v. State of West
Bengal, 2009(1) DCR 363, wherein it has been held that wrong
number on dishonour cheque is of no relevance for the drawer to
pay the amount covered by such cheque, have also been referred in Pt. Gorelal's case.

8. It is evidence that this Court has taken a consistent view in


Kunstocom Electronics (I) Ltd and Sunder Dev (supra), that there
is no provision for amendment in the Code of Criminal Procedure
and the amendment in the complaint cannot be permitted, but in
the case of Pt. Gorelal (2011 ACD 313(MP)) (supra) taking note of
the aforesaid cases, it has been held that application for correction
of cheque number can be allowed.

9. The Hon'ble Supreme Court in the matter of Sant Lal Gupta


and others v. Modern Co−operative Group Housing Society Limited
and others, (2010) 13 SCC 336 : (AIR 2011 SC 882) observed in
paras 17 and 18 (paras 18 and 19 of AIR) as under:− "17. A co−ordinate Bench cannot comment
upon the discretion exercised or judgment rendered by another co−
ordinate Bench of the same Court. The rule of precedent is binding for the reason that there

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is a desire to secure uniformity and certainty in law. Thus, in judicial


administration precedents which enunciate the rules of law
from the foundation of the administration of justice under
our system. Therefore, it has always been insisted that the
decision of a co−ordinate Bench must be followed.

18. In Rajasthan Public Service Commission v. Harish


Kumar Purohit (2003) 5 SCC 480 : (AIR 2003 SC 3476),
this Court held that a Bench must follow the decision of a
co−ordinate Bench and take the same view as has been taken earlier. The earlier decision of
the co−ordinate Bench is binding upon any latter co−ordinate Bench deciding the
same or similar issues. If the latter bench wants to take a different view than that taken by
the earlier Bench, the proper course is for it to refer the matter to a larger Bench.""

38. Thus from the above, it is evident that the amendment was
prayed for to effect the necessary correction in the pleadings itself which is not permissible in law.

39. I may give one simple example. What would happen on the death of the complainant. Is it
not permissible to substitute the legal heirs of the complainant on the demise of the
original complainant. Will it amount to amendment in the complaint. The
answer has to be in the negative. The endeavour must be to do justice and not to take
a d v a n t a g e o f t e c h n i c a l i t i e s . T h e u r g e t o
resort to easy way out must give way to judicial justness.

40. The decision of the Supreme Court in the case of Subodh (supra)
has also no application worth the name. In the said case,
during the pendency of the trial, the complainant prayed that he may be permitted to add
S e c t i o n 4 2 0 o f t h e I n d i a n P e n a l C o d e
along with the Section 138 of the Negotiable Instruments Act. In such circumstances, the
S u p r e m e C o u r t o b s e r v e d i n p a r a N o . 3 0
that the Court had no jurisdiction to allow the amendment of the complaint at a later stage.

41. In my view, the trial Court passed a correct order allowing the application Exh.3 and
permitting the applicant herein to be substituted as a complainant in place of the
original proprietary concern.

42. For the foregoing reasons, the impugned order passed by the Revisional Court dated
1 6 . 1 0 . 2 0 1 4 i n t h e C r i m i n a l R e v i s i o n
Application No.191 of 2014 is hereby quashed and set aside. The order dated 03.04.2014 passed
by the learned Metropolitan Magistrate below Exh.3 in the Criminal Case No.2592 of 2010 is
confirmed.

43. The trial shall now proceed further expeditiously in accordance with law.

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(J.B.PARDIWALA, J.) chandresh

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